Audit, Compliance and Risk Blog

Since assuming office, President Trump and his administration have generally sought to reduce and repeal formal federal regulations, and to tighten appointed agency heads’ direct control over their agencies’ regulatory actions. These efforts have included executive orders (EO) from the President providing government-wide mandates and priorities (For example, I wrote about EO 13777, “Reducing Regulation and Controlling Regulatory Costs”, here). They have also included formal regulatory proceedings, mostly directed toward reducing or revoking requirements adopted during President Obama’s tenure (for example, I wrote about the latest changes to national vehicle emission standards here). Individual agencies have followed and reinforced these efforts (For example, I wrote about the Environmental Protection Agency “Back to Basics” initiative here).

The Occupational Safety and Health Administration (OSHA) requires employers to evaluate whether air quality in their workplaces requires respiratory protection for workers, and to establish comprehensive evaluation and respiratory protection programs where necessary. In September, OSHA issued minor revisions to its respiratory protection requirements provisions for general industry (29 CFR 1910.134), adding two new quantitative fit testing protocols. Because of these changes,  now is a good time for employers to review requirements and compliance programs.

In May 2017, the Environmental Protection Agency (EPA) convened a task force of career professionals to evaluate the agency’s Superfund cleanup policies and make recommendations for improvements. The Task Force issued recommendations in December 2017  (I wrote about them here), and has now issued its final report. The report includes multiple examples of accomplishments related to each of the Task Force’s five goals.

The federal government has taken another step in its car wars with California. Late in September the Environmental Protection Agency (EPA) and the National Highway Traffic Safety Administration (NHTSA) issued joint rules declaring NHTSA’s preemptive authority to set national standards covering greenhouse gas (GHG) emissions from petroleum-fueled vehicles and electric vehicles, and revoking a waiver from EPA that lets California set such standards.

Since President Trump took office, the US Department of Justice (DOJ) has taken repeated steps to restrict federal attorneys from negotiating settlements in which defendants agree to conduct “supplemental environmental projects (SEPs)” in exchange for reduced formal penalties for the noncompliance that led to the agency investigation and enforcement. Proponents see SEPs as a way to promote environmental and health values by encouraging defendants to undertake projects that wouldn’t occur otherwise in order to reduce or eliminate civil and/or criminal liability. Opponents see them as rogue efforts in which prosecutors substitute their own judgment for the statutory and regulatory directives that are supposed to guide their actions.

The Business Roundtable has just offered its answer to the question “what’s the purpose for a corporation”? There are various ways to ask that question – existentially, legally, and/or operationally. Because the Roundtable is an association of chief executive officers of (CEOs) of many of America’s leading companies, its formal statements reflect the views of forward-looking Big Business. The Roundtable is most focused on the operational version, although press reports are pushing in all directions. The remainder of this note looks at what the Roundtable actually said, and provides some context to the multi-faceted question.

Among nearly one thousand pages of expansions to Clean Air Act (CAA) requirements, the 1990 CAA Amendments legislation provided for the creation of a national agency to conduct independent investigations of major chemical accidents, to issue accident-specific findings and specific or general recommendations for improved chemical handling and regulation, and to establish chemical accident reporting regulations.  This agency’s formal name is the Chemical Safety and Hazard Investigation Board – which usually refers to itself as the Chemical Safety Board or CSB. CSB was finally funded and began work in federal Fiscal Year (FY) 1997-1998.

The Clean Water Act (CWA) requires the Environmental Protection Agency (EPA) to define “oil” and “hazardous substances”, and includes requirements that EPA establish “procedures, methods, and equipment and other requirements for equipment to prevent discharges of oil and hazardous substances from vessels and from onshore facilities and offshore facilities, and to contain such discharges….” (33 USC § 1321(j)(1)(C)) Since 1973, EPA has required owners and operators of non-transportation-related onshore and offshore facilities to establish and implement Spill Prevention, Countermeasure and Control (SPCC) Plans if they manage more than threshold levels of oils (I summarized these requirements here).

On August 23, the federal Court of Appeals for the District of Columbia (DC Circuit) upheld most aspects of the National Ambient Air Quality Standards (NAAQS) for ground level ozone adopted by the Environmental Protection Agency (EPA) in 2015. The Clean Air Act (CAA) requires EPA to create a list of air pollutants based on emissions that cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare (criteria pollutants), to establish NAAQS based on these criteria, and to review the NAAQS every 5 years.

The Clean Air Act (CAA) directs the Environmental Protection Agency (EPA) to define “hazardous air pollutants (HAPs)” that may pose acute health hazards, and to impose regulations to reduce those hazards. EPA requires permits for “major sources” of HAPs based on “Maximum Achievable Control Technologies (MACT),” and lesser controls for non-major “area sources.” Since the Trump Administration took office, EPA has pursued several initiatives to make it easier for sources to reclassify from “major” to “area” in order to reduce their regulatory responsibilities. For example, in January 2018 EPA ended a decades-old policy declaring that every emission source that met major source criteria at the time a MACT became effective was “once in, always in” and could not requalify as a less-regulated area source by accepting legally binding controls that reduce its “potential to emit (PTE).” (I wrote about this change here).